Summary: Miss X complained the Council failed to provide full-time education for her child since November 2023. Miss X also complained the Council failed to meet deadlines for her child’s Education, Health and Care Plan and about the poor handling of her complaint. We found fault with the Council failing to provide suitable education for Miss X’s child from 9 May 2024 to 6 October 2024. The Council agreed to pay Miss X £1,225 for this missed education and provide training to its staff about how to assess and address a lack of education for a child not in school. The Council has already apologised to Miss X and paid her £300 for the stress caused through its communication with her and delays in the Education, Health and Care Plan process. We consider this a suitable remedy.

The complaint

1. Miss X complained the Council failed to provide full-time education for her child since November 2023.
2. Miss X also complained the Council failed to meet deadlines for her child’s Education, Health and Care Plan.
3. Miss X also raised concerns about the Council’s handling of her complaint.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. We cannot investigate a complaint if someone has appealed to a tribunal about the same matter. We also cannot investigate a complaint if in doing so we would overlap with the role of a tribunal to decide something which has been or could have been referred to it to resolve using its own powers. (Local Government Act 1974, section 26(6)(a), as amended)
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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What I have and have not investigated

9. I have investigated Miss X’s complaint about the Council’s failure to provide suitable education from 9 May 2024 to 7 October 2024.
10. I have not investigated issues about the suitability of Miss X’s child’s education from November 2023 up to 8 May 2024 despite her complaint about this. This is because the Council declined to assess Miss child’s for an Education, Health and Care Plan on 23 October 2023. Miss X gained an appeal right to the Special Education Needs and Disability (SEND) Tribunal on this date. Miss X used her right to appeal to the SEND Tribunal on 10 January 2024. Within this appeal, Miss X highlighted the failure to provide an Education, Health and Care Plan for her child was preventing her access to education and attendance at school. Miss X said she wanted the outcome of her appeal, and Education, Health and Care Plan assessment, to result in a smaller school setting for her child.
11. Since Miss X has used her appeal rights to the SEND Tribunal, the Ombudsman cannot investigate Miss X’s complaint. By law, the Ombudsman cannot consider matters which have been subject to appeal, or where the decision and consequence of the outcome of the appeal are inextricably related to the same matter. This restriction starts from the point at which Miss X gained her appeal right and ends at the conclusion of the appeal process, on 8 May 2024.
12. Miss X’s appeal to the tribunal specifically included comments about the suitability of her child’s educational placement. Since the outcome of Miss X’s appeal to the tribunal directly impacted on Miss X’s child’s access to education and how this should be provided, this matter is outside the jurisdiction of the Ombudsman.
13. Miss X has also complained about data breaches from the Council. Data breaches are matters for the Information Commissioners Officer to investigate and not the Local Government and Social Care Ombudsman.
14. I have investigated Miss X’s complaint about delays in the Education, Health and Care Plan assessment process, before and after the tribunal appeal, and about the handling of her complaint.
15. I have ended my investigation on 7 October 2024. This is the date the Council started to provide alternative provision of education for Miss X’s child. The Council had already issued its complaint response before this date and Miss had brought her complaint to the attention of the Ombudsman. I have exercised my discretion to investigate up to this point as issues directly related to Miss X’s complaint continued until this date. Any complaint about matters after this date would be the subject of a new complaint.

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How I considered this complaint

16. I have considered all the information Miss X provided. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
17. Both Miss X and the Council had opportunity to comment on my draft decision before I made my final decision.

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What I found

EHC Plans

18. A child with special educational needs may have an Education, Health and Care (EHC) Plan. An EHC Plan describes the child’s special educational needs and the provision required to meet them.
19. Statutory guidance ‘Special educational needs and disability code of practice: 0 to 25 years’ (‘the Code’) sets out the process for carrying out EHC assessments and producing EHC Plans. The guidance is based on the Children and Families Act 2014 and the SEN Regulations 2014. It says the following: 
• Where the council receives a request for an EHC needs assessment it must decide whether to agree to the assessment and send its decision to the parent of the child or the young person within six weeks. 
• The process of assessing needs and developing EHC Plans “must be carried out in a timely manner”. Steps must be completed as soon as practicable. 
• If the Council declines to carry out an assessment for an EHC Plan a person may appeal to the SEND Tribunal. If the Council concedes this appeal, and agrees to issue an EHC Plan following assessment, it must produce the EHC Plan within 14 weeks of conceding the appeal.  
20. As part of the assessment, councils must gather advice from relevant professionals (SEND Regulation 6(1)). The council may decide to seek additional advice, for example from an Occupational Therapist (OT) or Speech and Language Therapist (SALT), or the child’s parent or young person may request this. The council should decide if this is necessary based on the individual circumstances of the case.
21. Once the Council completes the EHC Plan it has a legal duty to deliver the educational and social care provision set out in the plan. The local health care provider will have the duty to deliver the health care provision.
22. The Ombudsman can look at any delay in the assessment and creation of an EHC Plan as well as any failure by the Council to deliver the provision within an EHC Plan.

Alternative Provision of education for children

23. Councils must arrange suitable education at school or elsewhere for pupils who are out of school because of exclusion, illness or for other reasons, if they would not receive suitable education without such arrangements. [The provision generally should be full-time unless it is not in the child’s interests.] (Education Act 1996, section 19). We refer to this as section 19 or alternative education provision.
24. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs he may have. (Education Act 1996, section 19(6))
25. The courts have considered the circumstances where the section 19 duty applies. Caselaw has established that a council will have a duty to provide alternative education under section 19 if there is no suitable education available to the child which is “reasonably practicable” for the child to access. The “acid test” is whether educational provision the council has offered is “available and accessible to the child”. (R (on the application of DS) v Wolverhampton City Council 2017)
26. We have issued guidance on how we expect councils to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. Out of school, out of sight? published July 2022
27. We made six recommendations. Councils should:

• consider the individual circumstances of each case and be aware that a council may need to act whatever the reason for absence (except for minor issues that schools deal with on a day-to-day basis) – even when a child is on a school roll;
• consult all the professionals involved in a child's education and welfare, taking account of the evidence when making decisions;
• choose (based on all the evidence) whether to require attendance at school or provide the child with suitable alternative provision:
• keep all cases of part-time education under review with a view to increasing it if a child’s capacity to learn increases:
• work with parents and schools to draw up plans to reintegrate children to mainstream education as soon as possible, reviewing and amending plans as necessary:
• put the chosen action into practice without delay to ensure the child is back in education as soon as possible.

28. Where councils arrange for schools or other bodies to carry out their functions on their behalf, the council remains responsible. Therefore, councils should retain oversight and control to ensure their duties are properly fulfilled
29. Government guidance on a council’s section 19 duties recommends councils arrange education for a child from the sixth day of absence when it is clear a child would be away from school for 15 days or more.
30. Our role is to check councils carry out their duties properly and provide suitable education for children who would not otherwise receive it. We do not have the power to consider the actions of schools.

Council complaint handling process

31. The Council operates a two stage complaints handling process.
32. At Stage 1, the Council’s process says it will provide a complaint response within 10 working days of acknowledgement of a complaint. The Council says it will tell a person if it needs longer to respond to a complaint.
33. A person can request consideration of their complaint at Stage 2 of the Council’s process if they are dissatisfied with the Stage 1 complaint response. The Council says it will provide a Stage 2 complaint response within 20 working days of receipt of the Stage 2 escalation request. The Council again says it will tell a person if it needs longer to respond to the complaint up to a maximum of an extra 20 working days.

What happened

34. On 22 September 2023, Miss X submitted an EHC Plan assessment application for her child, who I shall refer to as Y.
35. On 23 October 2023, the Council declined to assess Y for an EHC Plan. The Council wrote to Miss X explaining its decision and advising her how to appeal to the SEND Tribunal.
36. Miss X lodged an appeal with the SEND Tribunal on 10 January 2024. Miss X explained in her appeal that Y was refusing to go to school because of anxiety and she had concerns about Y’s access to education. Miss X said she wanted Y to attend a smaller school setting.
37. On 5 February 2024, the SEND Tribunal confirmed with the Council it had accepted Miss X’s appeal.
38. Miss X contacted the Council on 19 April 2024 to advise about Y’s attendance issues at school. Miss X said Y’s attendance in this academic year was 53.36%. Miss X queried why the Council had not offered Alternative Provision of education for her child.
39. The Council spoke with Y’s school and confirmed that Y was currently attending 1 hour of school each day with schoolwork sent home for completion. Y’s school told the Council it had arranged for an educational psychologist to assess Y in May 2024.
40. On 2 May 2024, Miss X made a formal complaint to the Council. Miss X complained the Council had ignored her contacts, ignored the tribunal and failed to offer Alternative Provision of education for her child who was not attending full-time education.
41. On 8 May 2024, the SEND Tribunal issued a consent order to the Council which instructed the Council to carry out an EHC Plan assessment of Y. The Council started this EHC Plan assessment on 9 May 2024 and confirmed this with Miss X.
42. The Council provided a Stage 1 complaint response on 10 May 2024. The Council said it agreed to complete an EHC Plan Needs assessment for Y in April 2024 which resulted in the SEND Tribunal closing the appeal. The Council apologised for failing to communicate this with Miss X sooner.
43. On 29 May 2024, Miss X sought consideration of her complaint at Stage 2 of the Council’s complaints process. Miss X said:
• She was complaining about the lack of communication from the Council during the entire EHC Plan application process.
• She was also complaining about the lack of Alternative Provision of education for Y. Miss X said Y had struggled with attendance since November 2023 and had not been attending at all since February 2024.
44. On 7 June 2024, the Council spoke with the Special Support Service about what support it could put in place for Y. The Council asked Y’s school to contact the Special Support Service to arrange a consultation.
45. On 26 June 2024, Y’s school told Ms X and the Council it was liaising with the Special Support Service about Y’s education. The Council responded to advise since Y was accessing education on offer from the school there was no role for the Council and it would close its involvement.
46. The Council issued a Stage 2 complaint response on 27 June 2024. The Council said:
• In May 2024 it had agreed to invest significantly in additional resources in the SEND and EHC Plan process to ensure assessments are conducted in a timely manner.
• It offered Miss X £300 as a symbolic payment for the stress Miss X had experienced through the EHC Plan delays and lack of communication.
• It acknowledged that Y was still not receiving any Alternative Provision of education and asked the relevant service manager for an update on this.
47. The Council paid Miss X the promised £300 on 10 July 2024.
48. On 5 September 2024, the Council issued a Final EHC Plan for Y. Within this Final EHC Plan the Council detailed that Y was now only attending school 30 minutes each week.
49. The Council arranged 10 hours of online tuition for Y each week, agreed with Miss X, which started on 7 October 2024.

Analysis

EHC Plan delays

50. The Council had six weeks from Ms X’s application for an EHC Plan to decide whether to assess Y for an EHC Plan. Since Ms X made her application on 22 September 2023, the Council had until 3 November 2023 to decide whether to assess Y. The Council decided not to assess Y on 23 October 2023. This was within the statutory timescales; I do not fault.
51. When the Council decided not to assess Y for an EHC Plan it told Ms X in writing. The Council was entitled to decide not to assess Y and I cannot question this decision. The Council did not need to take any action from 23 October 2023 until it conceded the appeal to the SEND Tribunal and it wrote to confirm this on 8 May 2024. The Council was not bound by any timescales during this time and I do not find fault with the Council’s actions.
52. If a council concedes an appeal to the SEND Tribunal, and agrees to assess a child for an EHC Plan, it has 14 weeks to produce the final EHC Plan from the date it concedes the appeal. This 14-week timescale is applicable when a council decides, following assessment, that it will produce an EHC Plan. Since the Council decided to produce an EHC Plan for Y following its assessment, the Council had until 14 August 2024 to produce the final EHC Plan. The Council only produced this final EHC Plan on 5 September 2024. The Council took 17 weeks from the consent order date to produce the final EHC Plan, this was a delay of 3 weeks outside the statutory timescales and was fault.
53. The Council has already apologised to Miss X and paid her £300 for the stress she incurred for this delay of three weeks and its lack of communication with her. An award of £300 is higher than the Ombudsman would normally look to recommend in these circumstances. The Council has already appropriately remedied this part of Miss X’s complaint.

Provision of education

54. We cannot consider the role of the school as schools are not within the Ombudsman’s jurisdiction. This investigation is limited to consideration of the role of the Council.
55. The first time Miss X, or the school, made the Council aware of Y’s attendance difficulties was in September 2023 when Miss X made the EHC Plan assessment application. However, at this time, Y had only missed four days of education. By the point the Council declined the assess Y for an EHC Plan, Y had not missed fifteen cumulative days. This meant the Council’s Section 19 duty would not have been invoked. Following this, the next time either Miss X, or the school, raised Y’s attendance issues with the Council was on 19 April 2024. Since neither Ms X nor Y’s school told the Council that Y was having attendance difficulties again before this date, I cannot find it at fault for failing to act to provide education for Y.
56. As explained in paragraphs 10 to 13, I also cannot investigate Y’s lack of education from 23 October 2023 to 8 May 2024 because of Miss X’s appeal to the SEND Tribunal. As such, I cannot find fault with any of the Council’s actions or inaction from 19 April 2024 to 8 May 2024. I can consider the Council’s actions from 9 May 2024, in the context of Miss X’s contact on 19 April 2024.
57. Following Miss X’s contact on 19 April 2024, the Council contacted Y’s school and found that Y was only accessing 1 hour of education each day in school with remaining work sent home. This meant, since 30 April 2024 the Council was aware of Y’s limited access to education. In turn, Y’s sixth day of reduced access to education, which the Council was aware of, was before the start date of our investigation on 9 May 2024.
58. The law is clear that where a school does not make appropriate arrangements for a child who is missing education through illness or ‘otherwise’, the Council must intervene and make such arrangements itself. It is not the role of the Ombudsman to investigate Y’s school and what educational provision it put in place before the Council became responsible.
59. A council does not necessarily have to provide full-time education for a child, if it does not consider this is in a child’s best interest. However, the Council should take certain actions when it finds a child is not receiving a, or is receiving a reduced, education; I have detailed these actions in paragraph 27.
60. The Council has shown some involvement in Y’s access to education, through contact with the school from 30 April 2024 to the end of the academic year. Despite this, it failed to suitably consider or act on Y’s lack of education. The Council failed to detail its consideration of Y’s individual circumstances or Y’s access to education. The Council failed to consider whether to require Y’s attendance at school and failed to keep Y’s part-time attendance at school under review. Notably, the Council failed to draw up any plans for reintegration of Y into full-time education. The Council instead left the school to make arrangements for Y’s education despite it knowing the school was not providing a suitable education for Y. This was fault.
61. In the Council’s Stage 2 response, the Council has accepted that it failed to arrange alternative provision of education for Y. Following the Council’s referral to the relevant service manager, Y was provided with 10 hours of online education each week from 7 October 2024. I am satisfied the Council took steps to provide education for Y from 7 October 2024. However, the delays in provision of a suitable education for Y from 9 May 2024 until 6 October 2024 was fault by the Council.
62. Our guidance on remedies for a loss of educational provision recommends a payment of between £900 and £2,400 per term to acknowledge the impact of that loss. The exact figure should be based on the impact on the child. This should take into account factors such as the amount of provision put in place, a child’s individual needs and whether they are in a key academic year.
63. Given the circumstances of Y’s complaint, Y did not lose a full education. However, from 9 May 2024 to 6 October 2024, Y was at best accessing 5 hours of education in school each week and at worst 30 minutes each week. Alongside this, Y’s school was sending work home for Y to complete. While Y’s school was making work available, this is not a suitable replacement for a formal education and between 30 minutes and 5 hours each week is far short of a full-time education.
64. Given the circumstances of Y’s time of education, I consider an award of £1,100 per term suitable for Y’s potential lost education, totalling £1,225 for the 14 and a half weeks from 9 May 2024 to 6 October 2024.
65. The Council should also provide training to staff about identifying when a child is failing to access a suitable education. This training should include what steps the Council should take to detail its consideration of a child’s access to education and how it proposes to address this. The Council should refer to the guidance Out of school out of sight? Published in July 2022 to inform this training.

Complaint handling

66. Miss X made her first formal complaint to the Council on 2 May 2024. The Council had 10 working days to provide a response to this complaint in line with its complaints process. The Council met this timescale by providing a complaint response on 10 May 2024. I do not find fault with the Council.
67. Ms X sought escalation of her complaint to Stage 2 of the Council’s complaints process on 29 May 2024. The Council had 20 working days to provide a response to this complaint in line with its complaints process. The Council missed this deadline by 1 working day. While this was fault, this would not have caused a significant personal injustice to Miss X and any stress caused would already be covered within the £300 payment made by the Council. I do not consider any further action is needed by the Council to address this fault.

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Agreed action

68. Within one month of the Ombudsman’s final decision the Council should:
• Provide a payment to Miss X of £1,225 for Y’s lost education because of the inaction of the Council from 9 May 2024 to 6 October 2024.
69. Within three months of the Ombudsman’s final decision the Council should:
• Provide training to staff about identifying when a child is failing to access a suitable education and what steps the Council should take to detail its consideration of this access to education and how it proposes to address this. The Council should refer to the guidance Out of school out of sight? Published in July 2022 to inform this training.
70. The Council should provide us with evidence it has complied with the above actions.

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Final decision

71. There was fault leading to injustice. As the Council has agreed to my recommendations, I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman